Hyperlinking under attack in the EU

Do you know who Britt Dekker is? If you don’t binge-watch Dutch RTL 5, then you probably won’t. She hosted dating show Take me out in 2009 and her career exploded two years later, when she took part in the reality-show Echte Meisjes in de Jungle (Real Girls in the Jungle). Dekker was ‘real’ enough to win the show, 30 thousand euros and the status of Dutch celebrity. Playboy asked her to be their cover girl and the new RTL 5 starlet was happy to take her clothes off for Hugh Hefner’s magazine.

Unfortunately, I didn’t manage to get my hands on a printed copy of this 2011 issue of Playboy. However, I did find the pictures online. Well, they look like some kind of collaboration between Playboy and the mineworkers’ unions. Half naked in pink stockings with waves of blonde hair and wallowing on a slagheap, Dekker would certainly have her place in many a Dutch coal miner’s locker (if  the mines hadn’t been closed since the 70s).

The Dutch TV host’s photo shoot was a hot topic in local showbiz for a while and a chance to earn some money. How do you use nude celebrity pics to feather your nest? You will need: an Internet blog with ads (like GeenStijl) and an external hosting website where scans of Playboy photos can be uploaded (Rapidshare will do). Then you just have to publish a post with a hyperlink to the photos and give it a nice click-bait title – something like: REAL GIRL FROM THE JUNGLE NAKED [HOT PHOTOS!!!]. And it’s done. Likes are popping up on Facebook, clicks are growing and ads revenues are skyrocketing.

GeenStijl publisher (GS Media) followed this exact path to make some money on a temporary surge of Britt Dekker’s popularity, which Playboy publisher (Sanoma Media) wasn’t very happy about. Playboy photographers had put blood, sweat and tears into that photo shoot on a slagheap and now someone had taken their photos outside of the paywall. Playboy magazine requested that GeenStijl delete the post hyperlinking to the photos.

Editors of the blog didn’t care much about that and when the photos were deleted from Rapidshare servers they hurriedly found them elsewhere.

Playboy sued GS Media. The long story of the case began in the Dutch justice system. For a few years it travelled through a number of degrees of jurisdiction before reaching the Supreme Court of the Netherlands. It couldn’t come up with a sentence, so the judges asked the Court of Justice of the European Union (CJEU) for help. Five years after the photo shoot on a slagheap, Britt Dekker is not only an RTL 5 starlet but also a protagonist of one of those cases that could redefine copyright law for decades.

The ruling

On Thursday 8^th September 2016 the Court of Justice of the European Union passed their sentence, stating that GS Media violated copyright laws. GeenStijl actions were undertaken for “financial gain” and the blog’s editors were fully aware that the content that they hyperlinked was uploaded illegally. Does this verdict mean that if someone posts a link to content taken outside the paywall without doing it for profit or being aware of the legal status of hyperlinked materials, they shouldn’t be afraid of any legal consequences? Well, you can understand the CJEU sentence like that as well. But if you run a “professional” website then you are obliged to make sure that any hyperlinks you post do not refer to illegally published content.

The CJEU’s ruling has outraged Internet users’ rights and freedoms advocates. The Pirate Party MEP Julia Reda’s statement read: “This [the sentence] sets a dangerous precedent and establishes an onerous burden on anyone running a website in Europe. It lends new urgency to what I proposed in my copyright report last year: EU law should clarify that links are never copyright infringement.”

So, now everyone who runs a website should break out in a cold sweat? All in all, GeenStijl posted links to the naked pics for no other reason than making money. This case wasn’t about some kind of academic blog on porn studies, nor the group of internet Robin Hoods who steal porn from paid sites, to provide some masturbatory pleasure for those who cannot afford a monthly Playboy subscription.

The case in question regarded a commercial blog publisher in one corner and a commercial magazine publisher in the other. Both of them wanted to make some money on the photos. The difference is that the team of the magazine bore all the production costs for these photos and so didn’t want the profit stream to flow in any direction other than their own. But is that really so scandalous?

“I don’t think it is. Same as the idea to prosecute copyright infringements in general. But the conclusions you can draw from the CJEU sentence are no good”, replies Alek Tarkowski, chief of Centrum Cyfrowe (Digital Centre) NGO, when I share my doubts with him. “Firstly, this category of financial gain seems very broad, and it’s hard to predict to whom it will refer to. Wikipedia, for example, accepts donations, regular fees, and they don’t spend it right away. It begs a question: is it financial gain or not? I consulted that with a lawyer, and he believes it is perfectly legitimate question,” Tarkowski points out.

What about the bloggers who don’t run their sites for profit? I learned form Tarkowski that their situation is far from clear. “If you have a blog on a commercial platform, like Blogger for instance, which profits from the ads published on your website, and even if you don’t see a penny out of these profits, it’s still not so obvious that you don’t take part in actions for financial gain”.

Krzysztof Siewicz of the Nowoczesna Polska (Modern Poland) foundation pointed out another inexactness of the CJEU sentence. “There is no clear-cut definition of hyperlinking, to begin with. There are different ways to refer to websites online and how these references will be processed by a particular software or other websites depends on various circumstances.”

Alek Tarkowski remarks that this sentence could lead to the prosecution of not only those who publish copyrighted materials without the consent of the rights’ holder but even those referring to them. The chief of Centrum Cyfrowe stresses that “posting a link is something different than uploading a file (e.g. with a copyrighted movie) to your own website”.

Katarzyna Szymielewicz of the Panoptykon (Panopticon) foundation has similar views on this issue. “The sentence seems to me as a favour to lobbyists pushing for strict enforcement of copyright law. Now the professional websites, whatever it supposed to mean, will be expected to possess the knowledge of the legal status of everything they refer to. Thus, they will be responsible for possible copyright infringements done by their users. It’s a serious paradigm shift. In my opinion, it’s a simple way to surveillance of content and censoring what users publish in such empires as Google or Facebook”.

The Outrage caused by the CJEU sentence was just a prelude to more the serious outburst of criticism that occurred a week later.

Save the link

Günther Oettinger, the European Commissioner for Digital Economy and Society delivered a speech on September 14^th at the European Parliament. He presented the guidelines of the copyright law reform as the part of the State of The European Union.

The Pirate Party’s MEP Julia Reda doesn’t look set to become a fan of Oettinger after this speech. She claims that Oettinger tried to pass the “link tax” via the back door, regardless of the fact that the European Parliament has already rejected it. In fact, she soon started the #SaveTheLink campaign alongside three other deputies. They announced that they will defend the “right to link” at all costs. According to these four MEPs, Oettinger’s plan is dramatically wrong. Just take a look at their comments on the Commission’s proposals.

Marietje Schaake of Alliance of Liberals and Democrats for Europe (ALDE) believes that the proposed reform “would break the internet as we know it”and Julia Reda commented on the proposal in following words: “This retrograde proposal would spell disaster for freedom of expression on the internet and for European startups’ ability to compete.” Dan Dalton of the European Conservatives and Reformists (ECR) called the reform an “attack on diversity and consumer choice,” and Brando Benifei (Progressive Alliance of Socialists and Democrats, S&D) clarified that European Parliament has already voted against a very similar proposal.

So, what is really going on? Is Oettinger conspiring to shut down the Internet? Has someone really lost their mind and is aiming to ban hyperlinking?

The answers to these questions are respectively: no, and not really. This is not the first time so called “link tax” pops up have been on the agenda of European politics. But what does it mean exactly to tax the links? It is a law designed to enable news publishers to charge websites for publishing their photos, headlines and snippets of the articles. Technically, it’s supposed to force Facebook, Google, and Twitter to pay the newspapers for referring to their pieces. Some publishers of journalistic content demand payment from the social media empires, because people allegedly don’t visit their websites when they can read these scraps of news in their Facebook feed (thus, the sites don’t generate clicks and ad revenues). Why do you need a whole piece, when you can just take a look at the headline, photo, and read half of the introductory sentence from time to time, right?

The Germans and Spaniards experimented with the “link tax” and the outcome was far from satisfactory. They backed off even faster than they established it. Google was not very eager to pay for links to the news articles in Germany, so the references to those newspapers that demanded it just vanished from the search results. The reaction to the “link tax” in Spain was even harsher; Google shut down the Google Reader service that was based on references to the news articles. Publishers didn’t need much time to realize that it’s better to be in Google for free than not to be there at all.

How scared we should be?

Basically, we know that the “link tax” didn’t work out in Germany and Spain. We also know that four MEPs have raised the alarm and called for action to defend the freedom of the Internet. But who do we have to defend? Ourselves? Publishers? Google and Facebook? The latter two especially don’t need my help. I believe they can defend themselves on their own pretty well. And the very idea that Google and Facebook should pay those who produced the content that gives them profit makes sense to me.

“The idea makes sense, but contrary to its implementation,” comments Alek Tarkowski. What’s the problem with Oettinger’s reform, then? “These regulations will favour big actors on the side of news aggregators that have enough capital to negotiate good conditions, and big actors on the side of publishers, with whom aggregators will come to agreement. Small aggregators that won’t afford licences and small publishers ignored by big business will be on the losing side. As a result the online ecosystem will be impoverished. Its most important virtue is pluralism, and biggest threat to it, monopolization,” Tarkowski explains.

More than a year ago, the European Commission received a clear message from the European Parliament. Commissioners’ ideas don’t have support among the representatives of EU citizens. But when you listen to Oettinger’s speech, it doesn’t sound like anyone has worked on improving the reform during the last year. “There wasn’t any discussion and the results of consultation process are still partly secret. Everyone knows that this solution is wrong, nevertheless it is pushed to be passed,” underlines Tarkowski.

The head of Centrum Cyfrowe is not the only one who holds this opinion. Critical voices against the Commission proposal are raised by Mozilla, Wikimedia, Creative Commons, and many others. What Till Kreutzer from German foundation Initiative gegen ein Leistungsschutzrecht says seems to be a good example of experts’ attitude towards Goettinger’s proposed reform: “Best thing we could gain is to stop this copyright reform in total. Then we start over again in ten years, when people have noticed the internet is important and users’ rights are as well.” [easy-tweet tweet=”See you in ten years, then. In the Internet without links.”]